Stapleton v Victorian WorkCover Authority
[2025] VCC 1010
•25 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-04610
| LUKE STAPLETON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2025 | |
DATE OF JUDGMENT: | 25 July 2025 | |
CASE MAY BE CITED AS: | Stapleton v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1010 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – right hand – right thumb
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013; Accident Compensation Act 1985
Cases Cited:Dordev v Cowan and Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Popal v Transport Accident Commission [2023] VSCA 222; Ellis Management Pty Ltd v Taylor [2013] VSCA 326; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Delos Reyes v Tusk Group Pty Ltd [2025] VSCA 20; Kesper v Victorian WorkCover Authority [2024] VSCA 237; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Delaney v Victorian Workcover Authority [2025] VSCA 59; Acir v Frosster Pty Ltd [2009] 454
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Garnham | Slater & Gordon |
| For the Defendant | Ms C Spitaleri | Lander & Rogers |
HER HONOUR:
Introduction
1Mr Stapleton, the plaintiff, is a 34-year-old right-handed man who injured his right thumb on 30 July 2021 (“the work injury”) while working as a roof plumber for Melbourne Roofing Systems Pty Ltd (“the employer”).
2The plaintiff seeks leave to bring common law proceedings against his employer for pain and suffering damages for the work injury, pursuant to s355 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).
3To succeed in his application the plaintiff must satisfy the Court that he has sustained a “serious injury” as defined in s325 of the Act, in accordance with well-known legal principles which are not in dispute.
4The plaintiff relies on paragraph (a) of the definition, “permanent serious impairment or loss of a body function”. The relevant body function is the right hand/right thumb.
5The impairment or loss of body function is “serious” if the consequences of the impairment or loss of body function are “fairly described as being more than significant or marked, and as being at least very considerable”, when judged by comparison with other cases in the range of possible impairments or losses of body function (often referred to as the “narrative test”).
The hearing
6The application was heard on 26 March 2025. Mr Murray J Garnham of Counsel appeared for the plaintiff, and Ms Carmelina Spitaleri of Counsel appeared for the defendant, the Victorian WorkCover Authority.
7At the hearing, the plaintiff adopted two Affidavits sworn on 26 March 2024 and 29 January 2025. He was cross-examined and re-examined. He was the only witness called.
8In addition to his two Affidavits, the plaintiff tendered a bundle of radiological reports and operation reports, two Medical Panel Opinions and Reasons, reports and letters from various treating medical practitioners and medico-legal reports.
9The defendant tendered letters from Dr Janakiramanan (treating surgeon), medico-legal reports, photographs and video posts from the plaintiff’s Instagram account, his Facebook profile picture, photographs, and posts from a Facebook account called “Magic Men Australia”, and an extract of a YouTube video of the plaintiff’s Australian Idol audition which was televised on 2 February 2025. I will collectively refer to the material as “Social Media Material”.
Background
10The plaintiff is a single man who lives alone.
11He completed Year 12. Whilst he was at school and for a period after leaving school, he worked at a Kentucky Fried Chicken outlet. He then fractured his right collarbone and was off work for an unspecified period of time. After this, the plaintiff worked for two years in events management. It is not clear precisely when that occurred. At some time, the plaintiff was diagnosed with testicular cancer and was off work for three months.
12He commenced a roof plumbing apprenticeship with his father at an organisation called Plumbing Down Under, where he worked for approximately 2½ years. He then worked at Detailed Roof Plumbing in Langwarrin. He did not complete his apprenticeship at this organisation.
13The plaintiff commenced work with the employer in January 2017 and completed his apprenticeship with the employer.
14The plaintiff described the duties of a roof plumber as follows:
“The work as a roof plumber is physically demanding. It involves handling large and often heavy pieces of guttering and pipes, regularly using tools such as tin snips and hammers as well as operating tools such as impact drivers, hammer drills and grinders.”[1]
[1] Plaintiff Exhibit P1, Plaintiff’s Court Book (“PCB”) 3 [8]
Issues in dispute
15Counsel for the defendant identified two key issues in dispute:
·the plaintiff’s credit and reliability; and
·whether the plaintiff’s pain and suffering consequences meet the narrative test – an issue commonly referred to as “range”.
Summary
16I have had the advantage of observing the plaintiff in the witness box whilst he was giving evidence and was cross-examined.
17I have considered all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
18For the reasons that follow, I have determined that Mr Stapleton has not satisfied his onus of establishing that the permanent impairment consequences of the work injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
19Therefore, the plaintiff’s application fails.
Circumstances of the work injury
20The work injury occurred on 30 July 2021, when the plaintiff was in a boom lift placing a section of box gutter into position. The box gutter was approximately 6½ metres long and it was heavy.
21The plaintiff said:
“I nearly had the box gutter into position and was adjusting it with my left hand coming over the top of it and my right hand was underneath it. As I was doing that the box gutter suddenly slipped and due to its weight my right thumb hyperextended and was jammed between the side of the box gutter and the wall of the building.”[2]
[2] Plaintiff Exhibit P1, PCB 3-4 [9]
Treatment history and current treatment
22On 30 July 2021, the plaintiff attended his general practitioner at Hastings Family Medical Centre and was referred for an x-ray of his right thumb. He had an ultrasound of his right thumb on 2 August 2021.
23On 5 November 2021, Dr Janakiramanan (treating surgeon) repaired the ulnar collateral ligament with an anchor and trigger thumb release. The plaintiff said this surgery did not assist with the pain and lack of strength in his right thumb.
24The plaintiff returned to work with the employer undertaking modified duties eight hours a day, two days a week. He carried out measuring work. He was unable to freely climb ladders, use the boom lift or operate tools and machinery.
25On 29 July 2022, Dr Janakiramanan performed an arthrodesis/fusion at the base of the right thumb. The plaintiff says he had an improved but “not wonderful” result from this surgery.
26In approximately September 2022, the plaintiff’s right thumb was knocked by a door at a shopping centre.
27Dr Janakiramanan performed “revision” surgery on 23 December 2022. The plaintiff says he got a better result from this surgery and, since then, his thumb has felt a bit stronger.
28The plaintiff has not worked as a roof plumber since July 2022. The plaintiff said in his first Affidavit that he could not work because of his unrelated heart condition.
Unrelated conditions
Heart
29The plaintiff developed myopericarditis as an adverse reaction to the AstraZeneca vaccine for COVID-19 in November 2021. He developed symptoms of heart pain and fatigue. On Boxing Day 2021, he was brought to hospital by ambulance and remained in hospital for a week.
30The plaintiff underwent heart surgery (pericardiectomy) in June 2023. After which he had a pleural effusion, and his right lung collapsed. He had further surgery to reinflate his lungs.
31As a result of his heart condition, the plaintiff often has chest pain and is breathless. He also gets brain fog. He tries to be as active as possible notwithstanding his heart condition symptoms. The plaintiff attends a cardiologist and a rheumatologist for his heart condition.
32In his first Affidavit sworn on 26 March 2024, the plaintiff deposed he took Mycophenolate and Colchicine for his heart condition, and Palexia and sometimes Endone for heart pain.
33In his second Affidavit sworn on 29 January 2025, the plaintiff deposed he was taking an immunosuppressant, Methotrexate, an anti-inflammatory, Colchicine, and opioid analgesia in the form of Tapentadol for his heart condition.
34The plaintiff is in receipt of a Disability Support Pension because of his heart condition.
Psychological
35The plaintiff deposed in his first Affidavit that he had suffered from depression before the accident due to relationship issues in late 2019 and extending through to 2021. He took anti-depressants and Diazepam for anxiety. He had some counselling with Ms Andrea Fisher (psychologist). He said he was considering resuming counselling with Ms Fisher, mostly for anxiety and depression related to his heart condition.
36In his second affidavit, the plaintiff confirmed he remained on anti-depressant medication and recently changed to Venlafaxine. He did not say that he had resumed counselling with Ms Fisher.
Left Knee
37The plaintiff had left knee pain in July 2021. While snowboarding in July 2022, he felt a pop in his left knee. He also hurt his left knee in a fall at a music festival and in a motor vehicle accident. He had left knee surgery in approximately 2023. The plaintiff deposed his left knee was good now and would not prevent him from working as a roof plumber.
Right Shoulder
38The plaintiff had a sore right shoulder in November 2019 and had a cortisone injection in December 2019. He said he was not troubled by his shoulder now.
Pain and suffering consequences relied upon
Pain
39The plaintiff deposed in his first Affidavit:
“As indicated my right thumb is fused at the bottom joint so there is no movement in it there. At the end thumb joint I have a decreased range of movement. I now have less strength in my right thumb, and I cannot grip objects as firmly with it. I now cannot lift as heavy weights with my right hand. I am right hand dominant.
I regularly get an ache in my right thumb, particularly with too much use of it. Sometimes that aching also goes into the hand. Movements involving vibration cause pain in my right thumb. Putting pressure on my right thumb causes pain in it and for example I now normally write holding a pen between my index and middle finger rather than also using my thumb. I often wear a glove on my right hand, more so in cooler weather when the thumb is more painful, and also to give it some support.”[3]
[3] Plaintiff Exhibit P1, PCB 6 [19]-[20]
40The plaintiff deposed in his second Affidavit:
“I remain restricted in this use of my right thumb as referred to in my earlier Affidavit. Being fused there is no movement in the bottom joint and in the end joint I still have a decreased range of movement. I still have less strength in my right thumb, and I cannot grip objects as firmly with it. Lifting heavier weights with my right hand remains more difficult, and finer movements involving picking up objects using my right thumb are more difficult.
I have altered sensation in my right thumb, and I still often get an ache and pain in it. The aching and pain often goes into my right hand. Movements involving vibration continue to cause pain in my right thumb, as does putting pressure on it. When writing I continue to normally write with a pen between my index and middle finger, rather than putting pressure on my right thumb.”[4]
[4] Plaintiff Exhibit P1, PCB 11 [5]-[6]
Work as a roof plumber.
41The plaintiff deposed that he could not currently work as a roof plumber due to his heart problems. He did not explain how he was able to work light duties up to July 2022.
42He deposed that once his heart issues resolved, he would not be able to return to work as a roof plumber due to his right thumb injury and the physical demands involved in roof plumbing work.
Handyman work and domestic chores
43He deposed there were limits upon him carrying out handyman tasks at home, due to problems with using vibrating tools such as drills. He deposed that completing such tasks around the home were things he previously enjoyed. He said a neighbour mows his lawn. Minor jobs involving strength and levering were also more difficult – for example, his father had to change the plaintiff’s tap washers at home.
44The plaintiff was able to carry out housework, but he had to pace himself and tried to avoid relying on his right hand.
Weightlifting/gym
45The plaintiff deposed in his second Affidavit that he attended the gym approximately five days a week for approximately 20 to 30 minutes. Prior to the accident, he usually went to the gym five to seven days a week, often up to an hour each session.
46At the time of swearing his second Affidavit, he said he was trying to lift heavier free weights.
47The plaintiff said he would often, but not always, put a strap with a ringlet on his right wrist and attach the ringlet to the weight mechanism to pull down on the weights and avoid pressure being applied to his right thumb. The plaintiff deposed in his first Affidavit that using the ringlet modification was “not nearly as effective, and consequently since the accident I have lost some upper body condition”.[5]
[5] Plaintiff Exhibit P1, PCB 8
Stripping work
48In his first Affidavit, the plaintiff said that he had worked as a male stripper for about seven years until the onset of COVID-19 in 2020. He said that when his heart condition settled down, he would have considered returning to stripping work, but with his loss of body condition he was unsure whether that would be successful.
49In the plaintiff’s second Affidavit, he maintained he had not returned to work as a stripper, and with the loss of his body condition he was unsure he would be successful. He said he had worked as a topless waiter a few times after the accident but could not continue in that work as lifting and carrying trays with his right hand was difficult.
Guitar playing
50In his first Affidavit, the plaintiff deposed he had enjoyed playing the guitar since he was 12 years old and that he had played in some bands. He said that strumming caused right thumb and hand pain, and he had not played the guitar for a while. He said he was a singer in a band which had performed once but that the band was more for recreation with some old school friends. He said he was limited in his singing due to decreased lung capacity stemming from his heart problem.
51In his second Affidavit, the plaintiff elaborated and said that he used to play guitar using a pick in his right hand. He stated:
“I do not play the guitar anymore, save for occasionally having tried to play it, but only to stop almost straight away because of right thumb pain…I am now confining myself to singing and not to guitar playing.”[6]
[6] Plaintiff Exhibit P1, PCB 13 [14]
52The plaintiff deposed in his second Affidavit that he had not uploaded any social media posts of him playing the guitar since the accident.
Motorcross/dirt bike riding
53The plaintiff used to enjoy motorcross/dirt bike riding about up to twice a week. He had tried motorcross bike riding after the injury once but found he lacked the strength and confidence to safely manoeuvre the bike.
Oral evidence
54In evidence-in-chief, the plaintiff clarified his second Affidavit and said that when he was at the gym, he used a strap with a ringlet on his right wrist only about 10 per cent of the time.[7] He did not explain why he had used the word “often” in his second Affidavit.
[7]Transcript (“T”) 6 Lines (“L”) 4-5
55The plaintiff agreed in cross-examination that he would get an ache and pain in the right thumb once a week. He agreed the pain was mild and would only last for a short period of time before going away.[8]
[8] T10, L2-6
56The plaintiff agreed in cross-examination that he had worked as a male stripper for a company called “Magic Men” using the stage name “Logan”. He agreed that there was no reason that he could not continue being a male stripper “long-term”, but there was an “expiration date” on being a stripper and he was probably past it,[9] which appeared to be a reference to his age.
[9] T25, L4-7
57In cross-examination the plaintiff said his routine was:
“based around live music and I shouldn’t have to change that.”[10]
[10]T25 L15-17
58The plaintiff said in cross-examination that playing a guitar for up to two hours, which he previously did, was now impossible. He said that he could barely play for two minutes now without aggravating his right thumb and experiencing cramps in his right hand.[11] In re-examination he said he used to play the guitar four or five times a week.[12]
[11] T27, L9-11
[12] T43, L7-9
59In re-examination the plaintiff said that prior to the accident, he would go to the gym for up to an hour and a half.[13] The plaintiff said since the injury to his right thumb he did not lift as heavy weights.
[13] T43, L25-27
Social media material
60The plaintiff confirmed that he had Instagram and Facebook accounts on which he displayed posts, photographs and videos.
61The following is a summary of the social media material tendered by the defendant. The videos were played in Court.
62The social media material fell into the following categories:
·photographs of the plaintiff’s house;
·photographs and videos of the plaintiff stripping at hens’ parties and photographs of the plaintiff advertising stripping performances;
·videos of the plaintiff playing the guitar and videos and photographs of the plaintiff performing onstage in a band, playing guitar or singing;
·video of the plaintiff crowd surfing at a concert;
·photos of gym activities; and
·footage from the plaintiff’s Australian Idol audition in late 2024.
House photographs
63During cross-examination, and before any photographs were shown, the plaintiff conceded he had “helped lay out the stormwater and helped clear out some of the land” during renovations to his home which he started during the COVID-19 lockdown period. He agreed that laying out the stormwater involved use of both hands. He also confirmed he used a bobcat which caused vibrations. He said the vibrations did cause him problems with his right thumb, but that he did it anyway.[14]
[14] T11, L27-T12, L12
64The defendant then produced three photographs of the plaintiff’s house.[15] One photograph was of the exterior of the house and two were interior photographs. They were apparently posted on the plaintiff’s Instagram account on 22 June 2022 with the caption:
“Transformation of my house”.[16]
[15]Defendant Exhibit D4
[16] Defendant Exhibit D4
65In cross-examination, the plaintiff said he did not lay the new floorboards shown in the second and third photographs of his house.[17]
[17] T19, L26-27
Stripping performances
66A video of the plaintiff performing a lap-dance/stripping was posted on his Instagram account on 5 February 2024.[18] During the video, the plaintiff removed a firefighting costume jacket starting on his left side, finishing with the right sleeve. The movement was performed swiftly without pause or hesitation.
[18] Defendant Exhibit D12
67A video was posted on a TikTok account on 24 March 2023.[19] The video appears to have been taken at a hens’ night. The plaintiff was seen wearing part of a firefighter’s costume and performing a lap-dance. The plaintiff straddled a seated woman, he used both his hands to grab the woman’s hands and, without any apparent hesitation, raised both sets of hands upwards and into the air, he then guided the woman’s hands back to his waist. He then placed his right arm over her shoulders.
[19] Defendant Exhibit D9
68The plaintiff said in cross-examination that he had nothing to do with the TikTok account which posted the second lap-dance video. He said he did not know when the video was taken but it might have been years before his injury.[20]
[20] T24, L7-14
69On 19 May 2022, the plaintiff posted a photograph to his Instagram account which showed him ripping his shirt off on a stage. The location was tagged as “Magic Men Australia”. The caption stated:
“Just doing my thing on stage @magicmenaustralia”[21]
[21] Defendant Exhibit D5
70The plaintiff said this photograph was taken before the accident and was uploaded later.[22]
[22] T21, L9-10
Advertising stripping work
71On 12 June 2022, the plaintiff updated his Facebook profile picture with the caption:
“Logan making a comeback soon @magicmenaustralia”.[23]
[23] Defendant Exhibit D6
72It is not clear when the photograph was taken.
73A “selfie” photograph of the plaintiff was posted on the Magic Men Australia Facebook account on 21 July 2022. The photograph depicts the plaintiff in a bathroom wearing a firefighting costume. The caption to the photograph stated:
“…This weekend Magic Men in Melbourne goes next level was [sic] we are running two shows - that’s twice the magic! #ladiesnight”.[24]
[24] Defendant Exhibit D7
74Another “selfie” photograph of the plaintiff was posted on the Magic Men Australia Facebook account on 29 August 2022 in which he was wearing a police officer’s costume. The caption to the photograph stated:
“…This Friday we are ready for you Geelong. And Saturday, Melbourne, Sydney, Brisbane and Alexandra Hills we are coming for you! #ladiesnight @logan_stapleton_magicmen”.[25]
[25] Defendant Exhibit D8
75The plaintiff said in cross-examination that the owner of Magic Men was his friend. He said that he participated in photo shoots to advertise Magic Men as he still “drew in a crowd”.[26] He said he was not performing for Magic Men.[27] He agreed the suggestion that he was going to be performing was “false advertising”.[28]
[26] T22, L21-22
[27] T22, L18-22
[28] T23, L6-9
76The plaintiff posted a photograph on 8 September 2023 on his Instagram account which showed him posing shirtless holding a sword in his left hand and carrying what appears to be a Viking helmet in his right hand in a fashion-shoot style photograph with a white background.[29] A surgical scar is visible in the centre of the plaintiff’s chest which indicates the photograph was taken sometime after the plaintiff’s pericardiectomy in June 2023. The plaintiff said this was a photo shoot he did for his friend who owned Magic Men.[30]
[29] Defendant Exhibit D11
[30] T26, L3-6
Guitar playing
77The plaintiff posted short videos of himself playing an electric guitar on 25 January 2023, 19 April 2023 and 2 October 2023.[31] In each video the plaintiff was strumming with his right hand and manipulating the strings on the frets with his left hand.
[31]Defendant’s Exhibits D12, D13, 14
78In the first video, the plaintiff was strumming with a guitar pick in his right hand to play the guitar. In the second and third videos, it is not clear whether he was using a guitar pick. It is clear his right thumb and forefinger were pinched together to strum.
79The caption in the video of 19 April 2023 stated:
“Pretty keen for band practice tonight Still looking for a drummer. Hit me up is [sic] you’re in Melb and looking to join a band!”.[32]
[32] Defendant Exhibit D14
80The plaintiff said in cross-examination that the video from 25 January 2023 was a video of him playing in a beginner/entry level way and was definitely not how he used to play the guitar.[33] He was then asked whether this meant he had filmed this video after his injury, and he said it did not mean that at all.[34]
[33] T28, L29 – T29, L1
[34] T29
81Other videos showed the plaintiff playing his guitar. The plaintiff said these were old videos.[35]
[35] T29, L14-18; T30, L17-20
82He did not really explain why he posted the videos in 2023.
Guitar performances
83A photograph posted on 1 August 2023 on the plaintiff’s Instagram account showed the plaintiff in a harness suspended several metres in the air above a stage. He was shirtless and holding a guitar. The caption was:
“Have to admit this has got to be the highlight of any music/strip career. Was incredible and now I want to go so much bigger and better.”[36]
[36] Defendant Exhibit D10
84In cross-examination the plaintiff asserted this photograph was taken at the Sexpo convention in 2019.[37] He did not explain why he posted it in 2023.
[37] T24, L26-27
85The plaintiff posted a 12-second video on 10 December 2021 to his Instagram account which showed him playing an electric guitar on stage. He was playing a fast-tempo rock/metal song. His caption said:
“The rock king of @magicmenaustralia”.[38]
[38] Defendant Exhibit D16
86The plaintiff posted a video to his Instagram account on 21 July 2023. The video showed him playing guitar on stage while another person sang. The plaintiff’s caption stated:
“Jesse and I rocking the stage”.[39]
[39] Defendant Exhibit D17
87The plaintiff said that the videos related to pre-accident performances despite the fact that the videos were posted on 10 December 2021 and 21 July 2023.[40] He did not explain why the videos were posted in 2021 and 2023.
[40] T31, L26-29 and T32, L15-16
Singing performances
88In cross-examination, the plaintiff said that, consistent with his Affidavit, he had performed as a singer in a band named “The Last Dance” on one occasion only, at the Sexpo convention in 2023. He said he stopped playing for the band in October 2023.[41]
[41] T31
89A video was posted to an Instagram account relating to the band on 25 November 2023. It showed a band, with the plaintiff singing and performing on stage. A graphic towards the end of the video had the description “Melbourne 11/11/2023”.[42] The caption to the video stated:
“Little recap of our Saturday night show @lovexaus”.
[42] Defendant Exhibit D18
90Another video posted on the same Instagram account on 16 December 2023 showed a band performance in which the plaintiff was singing.[43]
[43] Defendant Exhibit D19
91After seeing the footage, the plaintiff conceded that he performed five shows with the band over two days at the Sexpo show in 2023.[44] He said that he “would class Sexpo as one show”.[45]
[44] T33, L7-12
[45] T33, L27
92The plaintiff posted a photograph of himself performing on stage singing to his Instagram account on 21 February 2024. [46]
[46] Defendant Exhibit D20
Crowd surfing
93A video was posted on another TikTok account on 30 May 2023. The video showed the plaintiff crowd surfing at a music concert using a hand-held selfie stick. During the video, he transferred the selfie stick from his right hand to his left hand. Shortly after that, he held the hand of a security guard/crew member with his right hand, before the security guard/crew member pulled the plaintiff by his torso over a barrier separating the crowd and the stage and put the plaintiff on his feet.[47]
[47] Defendant Exhibit D21
Gym
94The plaintiff posted a photograph on his Instagram account on 20 September 2024. It showed the plaintiff kneeling on an assisted dip machine at the gym. He was holding the handlebars on each side with each hand.[48] The weights were not visible.
[48] Defendant Exhibit D22
95The following comment was made:
“ …… Please give my business page a follow and show some support”
96The plaintiff was challenged in cross-examination as to how he could use such a machine but not handle the pressure of a pen against his right thumb, as he deposed to being unable to do in his first Affidavit. He said that he was not gripping the handlebars, but was simply resting his hands on top.[49]
[49] T41, L2-5
Australian Idol audition
97The defendant tendered a YouTube clip of the plaintiff’s Australian Idol audition which was televised on 2 February 2025.[50]
[50] Defendant Exhibit D23
98The precise date of the audition is unknown as the plaintiff did not refer to it in his Affidavit material. He told a medico-legal examiner, Mr Damon Thomas, in late September or early October 2024, that he had been on Australian Idol the week before Mr Thomas’ examination.[51]
[51]Plaintiff Exhibit P8, PCB 67
99Doing the best I can on the material, I infer that the Australian Idol audition occurred in the latter part of 2024.
100The Court has taken into account that this is a piece of video footage which is cut and edited for television viewing, as opposed to the kinds of unedited surveillance footage more commonly shown in serious injury proceedings.
101The plaintiff introduced himself at the beginning of the audition as a “former male stripper”. During the audition, he dropped to the floor to perform a “worm” breakdancing move for several seconds. The move involved supporting his body weight with both of his hands. He appeared to drop to the floor to perform this move without hesitation.
102The plaintiff agreed in cross-examination that his right thumb did not stop him from doing the dance move.[52] He said that his body weight could be dispersed to the sides of his palms and hands for the dance move.[53]
[52] T42, L7-8
[53] T41, L23-26
The plaintiff’s explanation
103The plaintiff said he uploaded old photographs and videos because:
·he wanted to try and get back to male stripping, so he had to try to look as if he was still active in that industry;[54]
·sometimes he would plan out content and use backlogged photos with the Magic Men business;[55] and
·his Instagram account had been disabled for a long time, so he was re-uploading photographs he had taken in the past.[56]
[54] T21, L8-13
[55] T21, L16-18
[56] T21, L19-22
Medical evidence
Radiological and operation reports
104The plaintiff tendered:[57]
· An x-ray of the right hand dated 30 July 2021 which was reported to show a tiny avulsion fracture at the base of the proximal phalanx. No further fractures were suspected, and joint spaces were intact.
· An ultrasound of the right thumb dated 2 August 2021 which was reported to show an avulsion fracture fragment. There was no joint effusion arising from the metacarpophalangeal or interphalangeal joint. The overlying thumb flexor and extensor tendons were noted to be normal.
· An x-ray of the right thumb dated 12 October 2022, which was reported to show a plate fixation of the first MCP joint with intact plates and screws.
Treating medical practitioners
[57] Plaintiff Exhibit P10
Dr Balasubramaniam Nanthakumar, general practitioner, Hastings Medical Centre
105The plaintiff tendered a report from Dr Nanthakumar dated 22 December 2022.[58]
[58]Plaintiff Exhibit P4
106The letter preceded the plaintiff’s third operation. Dr Nanthakumar considered the prognosis was good, subject to the plaintiff having a third operation. He also considered that that plaintiff’s work capacity was dependant on the surgical outcome. He was unable to say whether there would be long-term deterioration.
Dr Neela Janakiramanan, hand and wrist surgeon
107The defendant tendered letters from Dr Janakiramanan dated 29 November 2022 and 9 March 2023, each addressed to Dr Nanthakumar.[59] The plaintiff tendered a report from Dr Janakiramanan dated 27 February 2025.[60]
[59] Defendant Exhibit D1
[60] Plaintiff Exhibit P6
108Dr Janakiramanan performed three operations on the plaintiff on 5 November 2021, 29 July 2022 and 23 December 2022.
109In a letter dated 29 November 2022, Dr Janakiramanan reported that surgery had resolved the plaintiff’s initial pain, and the plaintiff’s hand felt great and he could do more or less anything he wanted. She noted that, subsequently, the plaintiff had broken the fixation plate so he would need further surgery. At the time of the letter, she said that the plaintiff had “only the slightest” amount of neuropathic pain at the base of his thumb which was settling.
110In the letter dated 9 March 2023, Dr Janakiramanan reported the plaintiff underwent a right thumb fusion in 2022. It was her opinion that the fracture had united and the plaintiff was essentially pain free. She was happy for the plaintiff to return to all usual duties and hobbies.
111Dr Janakiramanan diagnosed:
· multiple ligament injuries to the metacarpophalangeal joint of the right thumb resulting in a chronically painful joint which ultimately required arthrodesis (fusion);
· trigger thumb successfully treated with trigger thumb release – which was fully resolved by the 2021 surgery.
112
In her report dated 27 February 2025, Dr Janakiramanan confirmed that she had not seen the plaintiff since March 2023. At which time, the plaintiff was “pain free”, the joint was stable and bony healing had been achieved. She was of the view that the arthrodesis had united. This was confirmed by the March 2023 radiology. She considered that the plaintiff would be capable of returning to pre-injury duties on a full-time basis, as well as pre-injury social/domestic/
recreational activities.
113Dr Janakiramanan opined that she did not expect the plaintiff would require any ongoing active treatment. Whilst she said it could be expected that there would be ongoing stiffness of the affected joint, in her opinion such stiffness would result in minimal functional limitations.
114Dr Janakiramanan said that typically patients having arthrodesis of a metacarpophalangeal joint do not have significant restrictions on pushing, pulling or lifting, repetitive pushing, pulling or lifting, prolonged use of the right thumb strap/hand and fine use of the right thumb and manual dexterity.
Mr Ross Bruce, physiotherapist/hand therapist
115The plaintiff tendered reports from Mr Bruce (physiotherapist) of Peninsula Hand Therapy, dated 25 January 2023, 24 January 2024, and 15 January 2025.[61]
[61] Plaintiff Exhibit P5
116In all reports, Mr Bruce described the initial injury on 30 July 2021 as a radial co-lateral ligament avulsion fracture of the metacarpal joint.
117It appears that when he wrote his first report, Mr Bruce was unaware the plaintiff had surgery on 23 December 2022.
118In his second report dated 24 January 2024, Mr Bruce considered that the third operation was successful in stabilising the plaintiff’s thumb joint.
119Mr Bruce’s final report dated 15 January 2025 noted that the plaintiff’s most recent appointment with him was on 3 January 2024.
120The plaintiff completed two questionnaires called “Quick Disabilities of the Arm, Shoulder and Hand” or “qDASH”. The questionnaire was a three part self-rated questionnaire which highlighted self-perceived difficulties. According to Mr Bruce, a score of zero indicated no perceived disability while a score of 100 indicated full disability.
121The plaintiff completed questionnaires on 15 December 2022 and 17 January 2024. The circumstances in which the questionnaires were completed was unclear. The Court was not provided with details of the questionnaires or the questions asked. The plaintiff rated difficulties with unspecified activities of daily living initially at 45.5 per cent and then at 54.5 per cent . He also self-rated 100 per cent for work and leisure in both questionnaires. The results indicated the plaintiff’s injury was having a significant ongoing effect on his life in all aspects from personal care to recreation.
122Mr Bruce said in his report of January 2025 that he was unaware of the plaintiff’s current symptoms given that he had not seen the plaintiff for a year. He expressed the opinion that the plaintiff’s social activities would be mildly impacted, his domestic activities would be mildly/moderately impacted, and his recreational activities would be significantly impacted by his injury.
123Mr Bruce opined that, as at January 2024 (when he last saw the plaintiff), the following restrictions would be appropriate:
· pushing, pulling or lifting limited to a mild/moderate extent for the foreseeable future;
· repetitive pushing, pulling or lifting limited to a moderate/significant extent for the foreseeable future;
· repetitive pushing and/or prolonged use of the thumb and hand limited to a moderate degree for the foreseeable future;
· fine and manipulative use of the right thumb limited to a mild extent for the foreseeable future; and
· general manual dexterity limited to a mild extent.
124Mr Bruce opined that the plaintiff would be permanently unable to perform his pre-injury duties:
“It is highly likely there will be ongoing pain and disability in [the plaintiff’s] thumb. The degree of deterioration is difficult to predict but, the unresolved instability at the MCPj will mean damage to the cartilage is inevitable. In addition to this, the scar tissue from multiple surgeries will possibly create restriction in movement at the distal thumb Interphalangeal joint (IPj). This, along with the MCPj restrictions, can create further functional deficit in pinching tasks.”
Dr Meena Mittal, pain specialist and anaesthetist
125The plaintiff tendered a report from Dr Mittal dated 21 March 2025.[62]
[62] Plaintiff Exhibit P7
126Dr Mittal saw the plaintiff on referral from Dr Janakiramanan on 27 May 2022.
127Dr Mittal said that, in May 2022, the plaintiff described a dull pain that was constant in the region of the first MCP which was present most of the time and an escalating sharp pain that commenced in the region of the first MCP and radiated to the thenar eminence and to the palm which was mostly present on movement of the right thumb.
128The plaintiff told Dr Mittal that he was independent with personal activities of daily living, but struggled to utilise his thumb on a repetitive basis due to the severity of pain in the right MCP. He otherwise said he spent his time as a bodybuilder but struggled to lift heavy weights when engaging his right upper limb.
129On clinical examination in 2022, Dr Mittal noted some localised swelling at the first MCP with tenderness on palpation. This was the only relevant clinical finding.
130Dr Mittal opined the plaintiff had developed first MCP osteoarthritis, which she believed was an aggravation of pre-existing degenerative joint disease. Dr Mittal considered the treatment options were limited. The plaintiff was not a candidate for NSAIDs in the long-term due to side effects. Opioids were not a long-term option either. Joint fusion surgery could decrease the plaintiff’s levels of pain but might reduce his function. She opined that the final option of neuromodulation/spinal cord stimulation was more suited to neuropathic sources of pain, as opposed to arthritic pain.
131Dr Mittal opined that the plaintiff had a poor prognosis.
132Dr Mittal opined the plaintiff was restricted or precluded in relation to employment activities involving:
· pushing, pulling or lifting;
· repetitive pushing, pulling or lifting;
· repetitive or prolonged use of the right thumb and right hand;
· fine and manipulative use of the right thumb;
· manual dexterity.
133Dr Mittal opined the plaintiff would have no capacity for his pre-injury duties as a plumber, either on a part-time or full-time basis. She considered the incapacity would be permanent, in that it was likely to last for the foreseeable future.
134Dr Mittal considered the plaintiff would be likely to be precluded or restricted in relation to social, domestic and recreational activities.
135Dr Mittal did not review the plaintiff after the second or third surgeries.
136Dr Mittal qualified her report by saying that her opinions were restricted to the date of her last review in May 2022. She stated she was unable to determine the plaintiff’s status as at 2025.
The plaintiff’s medico-legal opinions
Medical Panel Opinions
137The plaintiff tendered two Medical Panel Certificates of Opinion and Reasons dated 29 July 2023[63] and 29 February 2024.[64]
[63] Plaintiff Exhibit P2
[64] Plaintiff Exhibit P2
138The first Medical Panel Opinion is of little assistance as the Medical Panel believed that the plaintiff’s condition had not stabilised. At the time of the examination on 7 July 2023, the Medical Panel noted that the plaintiff was taking no medication for his right thumb. The right thumb ached but it was manageable. The plaintiff was consulting his general practitioner as required. He was also seeing a hand therapist monthly for a massage, strengthening and coordination interventions, and for certificates.
139The second Medical Panel noted that the plaintiff reported reduced movement in the right thumb, particularly through the metacarpophalangeal joint (which was fused). He said he had an intermittent ache which was worse with use and it could be persistent. He said he had reduced strength and fatigue in the right thumb, particularly with pinching activities.
140The plaintiff reported his social and recreational activities of guitar, gym attendance and motorbike riding were all adversely affected by his right thumb condition because of reduced strength and fatigue.
141On examination, the Medical Panel found the plaintiff’s right thumb was shortened by 10 per cent when compared with the left thumb.[65]
[65]No other medical examiner made such a finding
142The Medical Panel diagnosed residual dysfunction of the right thumb following an ulnar collateral ligament injury, fracture of the proximal phalanx, and fusion of the metacarpophalangeal joint of the right thumb.
Mr Damon Thomas, plastic and reconstructive surgeon
143The plaintiff tendered a report of Mr Thomas dated 7 October 2024.[66]
[66] Plaintiff Exhibit P8
144Mr Thomas performed an examination of the plaintiff in late September/early October 2024.
145Mr Thomas took a history that the plaintiff no longer participated in pre-injury sports and hobbies such as racing motorcross bikes and playing the guitar. Mr Thomas recorded the plaintiff’s guitar playing had been replaced by singing, and the plaintiff had been on Australian Idol the previous week.
146Mr Thomas was told that the plaintiff used to be a body builder but was no longer doing this but continued to attend the gym and keep active doing reduced gym work. Mr Thomas was told that the plaintiff’s neighbour helped him out with the lawns and that he used a robot vacuum cleaner.
147Mr Thomas was told that the plaintiff had worked as a roof plumber but had left that job due to an inability to use power tools and any vibration to the right hand.
148The plaintiff told Mr Thomas that he would like to open his own supplements business.
149The plaintiff complained of right thumb pain around the MCP joint, as well as reduced range of motion, cold intolerance and global loss of function.
150On clinical examination, Mr Thomas noted surgical scarring and said that the sensory examination of the right thumb was normal.
151Mr Thomas diagnosed a crush injury to the right thumb with an MCP joint injury with a UCL rupture, which had culminated in an MCP joint arthrodesis due to ongoing pain.
152Mr Thomas opined that the plaintiff’s prognosis would be relatively stable with no improvement or deterioration with time.
153Despite the apparently “normal” clinical examination, Mr Thomas opined that the plaintiff had a higher risk of developing arthritis in the adjacent joints of the right thumb over the IP joint and CMC joints.
154Mr Thomas recorded that treatment requirements currently were for analgesia only. He did not identify any particular medications the plaintiff was taking for his right thumb pain.
155Mr Thomas noted the plaintiff had stopped wearing a splint and a glove.
156Mr Thomas considered the plaintiff would be permanently restricted in the following ways:
·pushing, pulling or lifting;
·repetitive pushing, pulling or lifting;
·repetitive and/or prolonged use of the right thumb/right hand;
·fine and manipulative use of the right thumb;
·manual dexterity.
157Mr Thomas opined that the plaintiff did not have the capacity to return to roof plumbing duties.
Dr Robyn Horsley, occupational physician
158The plaintiff tendered a report from Dr Horsley dated 7 November 2024.[67] Dr Horsley assessed the plaintiff in person on 7 November 2024.
[67] Plaintiff Exhibit P9
159Dr Horsley took a history that the plaintiff was taking Methotrexate, 50 milligrams weekly, Colchicine and Norspan patches for his heart condition and as pain management for his heart. He was taking Paroxetine for his mental health, 40 milligrams a day.
160The plaintiff told Dr Horsley that he was taking Tapentadol slow release 100 milligrams, one tablet/twice a day over the last 12 months, Tapentadol immediate release for “breakthrough pain” – varying from zero up to six tablets per day for flare-ups, and Endone 5 milligrams – varying from zero to six tablets per day, prescribed six months ago for “breakthrough pain”. Dr Horsley recorded that “breakthrough pain” occurred once per week, and the plaintiff took Endone and Tapentadol immediate release on the same day, alternating the tablets two hourly. It appears that the plaintiff was referring to breakthrough pain and flare-ups in the context of his heart condition.
161Dr Horsley took a history from the plaintiff that he was consulting his general practitioner, Dr Hull, on a fortnightly basis. According to Dr Horsley, Dr Hull expressed the opinion in August 2023 that it was unlikely that the plaintiff would be able to return to a manual role secondary to his heart condition.
162Dr Horsley recorded that the plaintiff was attending the outpatient clinic of Peninsula Pain Management Group fortnightly for his heart condition and was consulting a rheumatologist, Dr Segan, three times monthly, and a cardiologist, Dr Premaratne, approximately three to six times monthly.
163Dr Horsley also recorded that the plaintiff had undergone a Ketamine infusion for chest pain five days before her consultation.
164She was told that the plaintiff had continued to attend Ms Fisher for counselling and that he had an appointment with a psychiatrist, Dr Jarafina, scheduled two days after her examination – these attendances were related to the heart condition.
165Regarding pain and suffering consequences relating to the work injury, the plaintiff reported pain and suffering consequences in relation to gym work, motorcross and playing the guitar. The plaintiff stated that his thumb injury prevented him from going back to the gym which was further complicated by his heart problem.
166The plaintiff reported he was experiencing chronic discomfort at the base of his right dominant thumb. At baseline level, prior to the Ketamine infusion, it was 1 out of 10, rising to 4 out of 10 when opening doors, jars, taps or at night when he moved in an unusual manner and particularly with the cold weather. Once the plaintiff stopped the activity, the discomfort settled back down to 1 out 10, but it often took hours and, at times, overnight to settle.
167On clinical examination of the right hand, Dr Horsley noted surgical scarring, there was some erythema (redness) over the volar surface of the thumb. There was some bulkiness of the thenar eminence on the right but no swelling. The plaintiff had a fused metacarpophalangeal joint and a mildly reduced distal interphalangeal joint limited to about half the range of flexion. The plaintiff was able to oppose his thumb to his index finger and middle finger.
168Dr Horsley considered that the power of the plaintiff’s right hand was reduced.
169Dr Horsley opined the plaintiff presented in a complex manner. She considered his progress had been significantly impacted by his myopericarditis and mental health. She recorded he had recently been admitted to hospital overnight with suicidal ideation.
170Dr Horsley opined the prognosis for the plaintiff’s thumb was for ongoing low-grade discomfort and disability which would require modification of duties into the longer term.
171Dr Horsley opined the plaintiff’s work restrictions for his thumb injury would include:
· avoidance of prolonged grip;
· avoidance of forceful grip;
· avoidance of forceful activities using the right hand;
· avoidance of using tools with an impact such as impact drills, hammers, welders etc;
· avoidance of lifting items at height where he could potentially drop items and impact upon those below;
· unfit to climb ladders;
· unfit to work at height holding items.
172Dr Horsley considered the plaintiff was permanently unfit to return to his role as a roof plumber but maintained he had a capacity for office-based work in areas such as events management. She noted that the plaintiff had expressed the desire to move into sound technician work, which he believed he could do once his heart issues had resolved.
173Dr Horsley considered that the plaintiff had no current capacity for work on the basis of the plaintiff’s heart condition alone taking into account his mental health.
The defendant’s medico-legal material
Dr Darrell Nam, plastic, reconstructive and hand surgeon
174The defendant tendered a report from Dr Nam dated 1 March 2023.[68] He examined the plaintiff on 1 March 2023.
[68] Defendant Exhibit D3
175The plaintiff was in a “recovery phase” following the December 2022 surgery and was wearing a splint on his right thumb. The plaintiff felt the surgery had been productive and he now did not feel any pain in his thumb.
176Dr Nam reported that the plaintiff had stabilised.
177On clinical examination, Dr Nam observed that the metacarpophalangeal joint was arthrodesed in the 30-degree flexed position. The movements of the distal interphalangeal joint were limited to 45 degrees of flexion and 10 degrees of extension. The radial abduction of the plaintiff’s thumb was 30 degrees. Adduction of the plaintiff’s thumb was normal and 0 centimetres (sic) and opposition of the thumb was 7 centimetres.
178Dr Nam diagnosed rupture of the ulnar collateral ligament of the right thumb and arthrodesis of metacarpophalangeal joint of the right thumb. He opined the prognosis was fair.
Dr Peter Dixon, hand, plastic and reconstructive surgeon
179The defendant tendered a medico-legal report from Dr Dixon dated 16 August 2023.[69] Dr Dixon examined the plaintiff on 16 August 2023. At the time of the examination, the plaintiff was attending monthly hand therapy.
[69] Defendant Exhibit D2
180The plaintiff complained of reduced strength in the right hand, reduced capacity to manipulate significant assets such as sheets of roofing, and cold intolerance.
181The plaintiff completed a QuickDASH questionnaire which had a score of 52.[70] Dr Dixon said this showed pain and symptoms with normal activity and ability to perform modified, unassisted, self-care activities.[71]
[70] It is not clear whether this was the same as the qDASH questionnaires referred to by Mr Bruce
[71] Defendant Exhibit D2, DCB 8
182Dr Dixon specifically noted that the plaintiff did not manifest abnormal pain behaviour or embellish or exaggerate his presentation.
183Dr Dixon said that the plaintiff’s injury resulted in fusion of the right thumb metacarpophalangeal joint with restricted motion of the thumb.
184Dr Dixon opined the plaintiff was incapacitated for pre-injury duties and hours due to impaired grip capacity and concerns regarding manipulating the assets required in roofing. He opined the plaintiff had capacity to perform modified and alternative duties.
The plaintiff’s credit and reliability
The plaintiff’s submissions on credibility and reliability
185Counsel for the plaintiff submitted:
· The plaintiff made concessions which he did not need to. For example, his concession that the video posted to social media on 25 January 2023 showing him playing guitar might have been taken after the injury. It was also said that the plaintiff was “exceedingly frank” in relation to the plaintiff’s band performing at Sexpo.
· Regarding the plaintiff’s social media posts and his evidence that many of the photos/videos were taken before the injury, Counsel for the plaintiff submitted that “there is no rhyme or chronological context” to what people post on social media.[72]
· The Australian Idol audition had not been televised by the time of swearing his second Affidavit, therefore it had not been front and centre of the plaintiff’s mind when it came to swearing his second Affidavit.
· The plaintiff’s evidence in cross-examination and re-examination that he could only use a chainsaw or drill for a limited amount of time was consistent with his Affidavit evidence.
· Counsel submitted the plaintiff’s Affidavits had been frank about his myopericarditis, and it being the reason he was on a disability pension.
[72] T87, L7-10
The defendant’s submissions on credibility and reliability
186The defendant submitted the Court should not accept the plaintiff’s evidence regarding the restrictions he has as a result of his right thumb injury.
187The defendant relied on a number of matters in relation to the plaintiff’s credibility and reliability, including:
· The plaintiff’s Affidavits, which spoke of difficulties using vibrating tools, failed to mention that he had been involved in house renovations which included laying the stormwater and clearing the front yard with a bobcat.
· The plaintiff’s explanation that his Instagram and Facebook posts included photos/videos that were taken before his injury and posted later was unsatisfactory and should not be accepted by the Court.
· The Court should reject the plaintiff’s Affidavit evidence that he had not returned to stripping work after his injury.
· The plaintiff’s Affidavit evidence that he had not posted any videos of himself playing the guitar on social media since the right thumb injury was clearly not true. The defendant further submitted the Court should not accept the plaintiff’s explanation that the social media posts of him playing the guitar were taken before the injury and posted later.
· The plaintiff’s evidence that he performed one show with his band should not be accepted given his concession that there were in fact five performances over a two-day period;
· The plaintiff had not mentioned his Australian Idol audition in his second Affidavit.
Findings on credit and reliability
188The Court of Appeal has said in cases such as Dordev v Cowan and Ors[73] and Petrovic v Victorian WorkCover Authority,[74] and most recently in Popal v Transport Accident Commission,[75] that a plaintiff’s credibility is relevant, not only to the question of whether his evidence should be accepted, but also to the reliability of the medical evidence presented. This is because the opinions of doctors are partially dependent on the credibility and reliability of the history given to them by a plaintiff.
[73][2006] VSCA 254
[74][2018] VSCA 243
[75][2023] VSCA 222
189I have formed the clear impression that the plaintiff was prone to exaggeration and denial where he thought such an approach may assist his claim.
190In this case, the plaintiff’s attempts in oral evidence to explain the social media material fail. I find his explanations that various photographs and videos were taken prior to 30 July 2021 but posted in 2023 and 2024 unconvincing. The plaintiff did not provide a proper reason why he decided, at random dates, to post old material on social media. The vague explanation provided was inconsistent with his concession that the January 2023 video which showed him playing guitar may have been taken after the injury. Further, there were no convincing reasons why the plaintiff posted the material after the injury.
191The plaintiff’s explanation that he was assisting a friend who ran the Magic Men business by posting old photographs of himself also lacked credibility and was unconvincing. His explanation that he was merely helping a friend by allowing his image to be used to get people to attend Magic Men shows as some sort of advertising bait also lacked credibility, particularly given that the plaintiff participated in an advertising photoshoot after his heart surgery.
192His oral evidence was inconsistent with his Affidavit evidence where he said:
· he had not uploaded any posts of him playing the guitar since the work injury;
· video uploaded on 14 December 2024 was uploaded by a third party and “must have been taken from a profile of mine which I uploaded before the accident”;[76]
· there were a number of false Instagram pages using his name and photographs which the plaintiff believed were set up by people “with a view of taking advantage or possibly in a sexual or financial way”.[77]
[76]Plaintiff Exhibit P1, PCB 14 [18]
[77]Plaintiff Exhibit P1, PCB 14 [19]
193The inconsistences between the Affidavit evidence and the oral evidence were not explained.
194I am not prepared to accept his uncorroborated and subjective complaints of pain and impairment consequences without carefully considering the objective medical evidence.
Submissions
The plaintiff’s submissions on range
195Counsel for the plaintiff emphasised the following:
· The plaintiff’s age (34).
· He is right-hand dominant.
· He has a fused right thumb with restricted movement in the distal point of the thumb and is at risk of developing arthritis.
· His right thumb pain is transient and related to use. In such context, it was said that it would not be pertinent to address the lack of pain medication.
· The consequence of lifting lower weights in the gym was a significant consequence particularly for the plaintiff, who was clearly concerned to maintain a degree of physical appearance.
· The plaintiff’s loss of capacity for roof plumbing work was due to his right thumb injury, and the Court should consider how the inability to perform such work might be indicative of the injury the plaintiff had sustained.[78]
[78] Ellis Management Pty Ltd v Taylor [2013] VSCA 326 at [44](b) (Osborn and Beach JJA (“Ellis”)
196In support of its submissions, Counsel for the plaintiff referred in particular to the following medical evidence:
· the physical examination undertaken by the Medical Panel in the Reasons dated 29 February 2024;
· the comments of Dr Janakiraman in her 27 February 2025 report regarding long term deterioration, specifically that arthrodesis of the metacarpophalangeal joint of the thumb in a young person can result, particularly in the carpometacarpal joint, in pain or earlier development of osteoarthritis;
· the opinion of Mr Thomas in his report of 7 October 2024 that:
“Due to the MCP joint arthrodesis [the plaintiff] has a higher rate of developing arthritis in the adjacent joints of the right thumb over the IP joint and CMC joints.”[79]
· the opinion of Mr Thomas that the plaintiff did not have capacity to return to his pre-injury duties, and Dr Dixon’s opinion that the plaintiff had capacity to perform modified or alternative duties;
· the opinions of Mr Bruce.
[79] Plaintiff Exhibit P8, PCB 67
The defendant’s submissions on range
197The defendant disputed the plaintiff’s credibility and reliability and whether the plaintiff’s pain and suffering consequences met the threshold set out in the narrative test.
198In relation to pain, the defendant referred to evidence the plaintiff gave at the beginning of cross-examination accepting the pain he suffered was mild, happens about once a week and lasts a short time. It was submitted that the plaintiff had no need for any regular pain medication for his thumb and that he took large amounts of pain medication for an unrelated condition.
199The defendant relied upon:
· Dr Janakiramanan’s opinion in February 2025 that (noting she had not seen the plaintiff since 9 March 2023) she would expect there to be “ongoing stiffness of the affected joint but, typically, this would result in minimal functional limitation”.[80] It was her general expectation that the plaintiff would be capable of returning to pre-injury duties and social, domestic and recreational activities.
· Dr Horsley’s comments in her 7 November 2024 report that the plaintiff’s prognosis was for ongoing low-grade discomfort and disability related to the right hand and thumb, which would require modification of duties into the longer term.
[80] Plaintiff’s Exhibit P6, PCB 45
200The defendant acknowledged there was some evidence the plaintiff could not return to his pre-injury work because of his right thumb injury but relied upon Dr Janakiramanan’s opinion that he could return to pre-injury work. Counsel submitted that ultimately it was one consequence to be taken into account when assessing the plaintiff’s pain and suffering.
201The defendant submitted that:
· The plaintiff’s gym activities were largely unrestricted or only modestly restricted by his right-thumb injury, and the principal cause of any restrictions was the heart condition, which the plaintiff said caused him difficulties with breathing, fatigue, and walking.
· Any dysfunction of the right thumb had a minimal impact on the plaintiff’s daily living, which is apparent from what can be seen in the social media material.
· The plaintiff had retained the ability to live a very active life. He attended the gym five times a week, was able to attend concerts, was able to go snowboarding, played in a band up until the end of 2024, and had auditioned for Australian Idol where he demonstrated some stripper moves and the worm dance. In addition, he could undertake home renovations and do household tasks while pacing himself.
Findings on range
202When considering whether the permanent impairment consequences of the plaintiff’s right-hand injury are “serious,” I bear in mind that this is a gateway application.
203I also bear in mind what was said by the Court of Appeal in TTB SMS Pty Ltd v Reading:
“The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”[81]
[81][2020] VSCA 203 [31]
204As well as what was said in Delos Reyes v Tusk Group Pty Ltd:
“In Kelso v Tatiara Meat Co Pty Ltd, Dodds-Streeton JA observed that the endurance of permanent daily pain requiring frequent medication must ‘raise a real prospect of a “very considerable” consequence” Regular but not frequent medication, and the use of other treatment modalities or activity modification to reduce reliance on medication, informs this applicant’s daily experience of pain…... The constancy of pain has a daily effect requiring modification of many activities of daily living.”[82] [citations omitted]
[82][2025] VSCA 20 [45]
205Further, when considering whether the “serious injury’ test has been met, the Court of Appeal in Kesper v Victorian WorkCover Authority said:
“The determination of the degree of the seriousness of the consequences of an injury is not to be determined by the use of a checklist, nor by reference to a plethora of cases with a myriad of different factual circumstances. Rather, it requires a holistic assessment of the nature of the injury, the consequent level of Mr Kesper’s neck impairment and its effect, if any on his activities-now and into the future-and then to determine whether that level of impairment meets the statutory requirements.”[83] [citations omitted]
[83] [2024] VSCA 237 [86]
206In reaching my conclusions, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[84] and Haden Engineering Pty Ltd v McKinnon.[85]
[84] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33
[85] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
207I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
208There is no dispute that it is the plaintiff who bears the evidentiary onus to establish serious injury.
209There is no dispute that the assessment of serious injury is a value judgement informed on the evidence, but also informed in part by reference to what a plaintiff says about the injury, his level of pain, the level of impairment, and impairment consequences and what he does about such pain, in the context of a consideration of the broad range of possible impairments and impairment consequences and not just those that come before the courts.
210In respect of pain, it is noted that the plaintiff’s oral evidence regarding pain is contrary to what he told doctors. His evidence to the Court was that he experienced intermittent pain with aching about once per week. He told Mr Thomas that he had pain with a global loss of function. He told Dr Horsley that he had pain and chronic discomfort at the base of his thumb. He told Dr Mittal, in May 2022, that he had constant and escalating pain at the base of his thumb.
211In considering what the plaintiff does about his pain, I find that he does not take medication for his thumb pain. His intake of Methotrexate, Colchicine, Tapentadol, as well as the need for Ketamine infusions, all relate to his heart condition.
212In the circumstances, I accept the description of pain as “transient” as stated by Mr Garnham. I find that the plaintiff experiences some intermittent pain as a result of the work injury. However, it is not constant.
213It has not been suggested that the plaintiff’s sleep has been impacted by the work injury. Any interference with his sleep has been due to the heart condition.
214In relation to treatment, Dr Mittal set out a number of treatment options which she said that she explained to the plaintiff and asked him to be reviewed by Dr Janakiramanan. There is no evidence that the plaintiff took any steps about the recommended treatment options or that he has sought further review with Dr Janakiramanan.
215Overall, I prefer the opinion of the treating hand surgeon, Dr Janakiramanan, rather than the medico-legal examiners. I have regard to the area of Dr Janakiramanan’s speciality – hand and wrist surgery. I prefer her opinions as she re-examined the plaintiff after each operation. I find that she is better placed to comment, rather than the treaters who did not re-examine the plaintiff after the second and third surgeries, and Mr Thomas and Dr Horsley - both of whom saw the plaintiff once for medico-legal purposes.
216The plaintiff told Dr Horsley that he attended Dr Hull (general practitioner) fortnightly. No material was produced from Dr Hull. Dr Hull was not mentioned by the plaintiff in his Affidavits or in his evidence.
217The plaintiff said he continued to attend the Hastings Medical Centre. The only report tendered from that centre was the report of Dr Nanthakumar dated 22 December 2022.
218The plaintiff placed specific emphasis on his inability to return to work as a roof plumber as a pain and suffering consequence. Such an incapacity may be a consequence which the Court can take into account in assessing pain and suffering and loss of enjoyment of life.[86]
[86]Ellis: Ibid at [35]
219The plaintiff devoted two sentences in his Affidavits to his attitude to roof plumbing:
“I am a qualified roof plumber and I enjoyed that work. I also enjoyed the physical nature of the work because it helped me to keep fit.” [87]
[87] Plaintiff’s Exhibit P1 PCB 8 [29]
220I accept that the plaintiff enjoyed the physical nature of his work as a roof plumber.
221Not all doctors held the view that the plaintiff could not return to pre-accident employment. Further, the medical opinion that he could not return to pre-accident work was largely dependent upon what the plaintiff has told various practitioners as to the extent of his restrictions.
222In this case, I prefer and accept Dr Janakiramanan’s opinion that the plaintiff had the capacity to return to pre-accident work by March 2023 from a work injury perspective.
223This is not a case where the plaintiff cannot return to manual work solely because of his work injury. I find that the plaintiff is currently precluded from work because of his heart condition. He is in receipt of a disability support pension because of that condition. It is not clear whether the plaintiff will ever be able to return to his pre-injury employment from a cardiac perspective.
224This case is not the same as Acir v Frosster Pty Ltd (“Acir”),[88] where the question of pecuniary loss was a live issue and where J Forrest J declined to fix a representative figure for “earning capacity” under s134AB(38)(f) of the Accident Compensation Act 1985 (“the ACA”), taking into account the supervening event of Mr Acir’s cirrhotic liver.[89] In Acir, the issue of pecuniary loss was a live issue. It is not in this case.
[88] [2009] VSC 454
[89] Ibid at paragraphs 170-278
225It should be remembered that in addition to what has been lost, I should have regard to what has been retained.
226The plaintiff told Dr Mittal that he spent his time as a body builder - this suggests a level of activity at the gym which is far beyond what he disclosed to the Court.
227I find that the plaintiff has been able to engage in a wide range of activities including:
· the ability to socialise, as evidenced by the video of him crowd surfing at a concert;
· the ability to perform publicly as a singer and guitarist and probably as a stripper;
· the ability to audition as a singer on Australian Idol in late 2024;
· the ability to attend the gym regularly; and
· the ability to set-up his own online business to sell nutrition products.
228I find he has been involved in promoting Magic Men. He may have also been performing as a stripper at hens’ parties.
229Even if the Court accepted that the plaintiff could not return to work as a roof plumber, if that were the only consequence found, it would not, of itself, be sufficient to meet the test.
230Whilst there may, potentially, be an interference with his capacity to engage in pre-accident employment because of the work injury, I am not prepared to find that such an interference is sufficient, on its own, to satisfy the “serious injury” test.
231Performing the value judgement required of me, and after considering the whole of the evidence, I am not satisfied that the permanent impairment consequences of the plaintiff’s work injury can be described as “at least very considerable.”
Disposition
232The plaintiff’s application fails.
233I will hear the parties on question of costs.
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